The foundation of the Republican Party’s case in the Watson v. Republican National Committee it’s that three 19th-century federal laws require thousands of validly cast ballots to be thrown in the trash — and somehow no one noticed this fact for the better part of two centuries.
In a neutral court, the case would never have reached the Supreme Court. It would be unanimously rejected by lower courts and ignored by judges. But, in the hard-line court that rules President Donald Trump’s America, the Republican Party convinced four justices to sign off on their attempt to overturn the majority vote.
Watsonin other words, it’s less a victory for democracy and the rule of law than a warning of what might happen if Trump gets even one more member of the Supreme Court. No sane justice would have agreed with Justice Samuel Alito’s dissent, but four of the Court’s nine justices did, regardless.
The majority opinion in Watson it is straightforward and clearly correct
The case involves three federal laws that set the election date for the president, the United States Congress and the United States Senate. Although these laws were enacted at different times and use different wording, they all do more or less the same thing. The the law that governs House racesfor example, which was enacted in 1845, provides “the Tuesday next after the 1st Monday in November, in every year so numbered, shall be established as an election day.”
The controversy of the Republican Party Watson (which was also done by the Libertarian Party of Mississippi) is that this law prohibits states from counting absentee ballots that are mailed before the state’s designated Election Day, but that arrive sometime after that date. Mississippi, the defendant in the case, is one of 30 states that allows at least mailed ballots that arrive after Election Day to be counted. In Mississippi, voters enjoy a five-day grace period, as long as the ballot is mailed before the deadline.
It should go without saying that, when Congress established Election Day in 1845, it did not intend for everything involving an election to occur on that day. Before an election, states must decide which candidates will appear on the ballot, print those ballots, distribute them to polling places and individual voters, register voters, and perform many other duties. Many states also allow early voting.
Also, after Election Day, the states should finish counting the votes, confirm that their initial count was correct, verify the election results, and perform various other tasks. The basis of the Republican Party’s case is that the task of collecting votes that have already been cast is somehow special, and must be done on Election Day.
But there is no legal support for this position. As Justice Amy Coney Barrett wrote for herself, her three Democratic colleagues, and Chief Justice John Roberts, when the federal law set the date for the “election,” it “set the day on which the elector must make his choice.” Voters must cast their votes by the deadline, but the same date does not apply to the work of ministers to collect all those votes in the government office where they will be counted.
Moreover, as Barrett points out, some federal laws simply assume that states decide what happens to late-arriving ballots. The Voting Law for Non-Uniform Citizens and Abroadfor example, it provides that overseas military voters’ ballots must be submitted to state election officials “not later than the date on which an absentee ballot must be received to be counted in the election,” and that a ballot will not be counted if it arrives after “the deadline for receiving (that) ballot under State law.”
The fact that Watson v. National Committee of the Republic was taken very seriously by the federal courts, and ultimately the Supreme Court, is a stain on the institution.
That’s strong evidence that Congress thought that states, not 19th-century federal law, determine the deadline when absentee ballots must arrive.
The strongest evidence, however, is the fact that, for more than a century, states have counted absentee ballots that arrive after Election Day, and no one has ever thought that this was a legal problem. During the Civil War, Barrett writes, Nevada and Rhode Island tasked military officers with “collecting the soldiers’ ballots on election day and then sending the ballots to state election officials to be counted — which meant that the ballots were not received into official custody until after election day.”
Similarly, in the 20th century, many states began allowing voters to mail in their ballots, and states that allowed late ballots to be counted were allowed to count. In the 1940s, for example, seven states enacted new laws allowing late ballots to be counted, but “Plaintiffs offer no evidence that any of these laws were ever challenged under the election day laws.”
And it’s not like the federal laws that set Election Day are so obscure. Each state follows these rules, as each state holds elections on the same day – with some exceptions to rules governing early voting, absentee ballots and similar issues. For more than a century, states across the country have read federal law, concluded that it allowed late votes to be counted, and enacted laws that said as much.
But, in WatsonThe four Republican justices claim they know better than every lawyer and state legislator who has read federal law alongside state laws like Mississippi and concluded that state law is permissible.
So what exactly is the opposition saying?
Much of Alito’s opposition is resounding known arguments of the Republican Party that voting by mail is a bad idea. He spends several pages of his opinion arguing, for example, that if late votes are counted, that could cause a candidate who was down early to come back to win the election. And that could lead people to think that voter fraud was responsible for this manipulation.
Of course, if the Republican Party thinks this is a good reason to remove laws like Mississippi’s, they can always lobby Congress or the Mississippi legislature to do so. But the fact that Alito and his Republican Party think Mississippi’s law is a bad idea is irrelevant to the question of whether it preempts current federal law.
To the extent that Alito is trying to make a legal argument for his position, he is basically saying that all votes must be collected by the government on Election Day because “this is what the election day rules required when all voting was done in person.”
Alito is correct that, before the Civil War, elections were usually held on the same day and people who were not in their states for the election were out of luck. Absentee voting did not spread until the war, because it was necessary for Union soldiers in the field to cast their ballots.
But the fact that America had no absentee ballots in 1845 does not mean that, when Congress set the election date for that year, it intended to close 180 years of electoral practice. As Barrett writes, Alito’s argument is based on the claim that “because we are governed by 19th-century election day laws, we are also governed by 19th-century voting practices.” The theory would end many modern practices that did not exist in 1845, including early voting.
The fact that Watson was taken very seriously by the federal courts, and ultimately the Supreme Court, is a stain on the institution. The real basis of this case is that, because the Republican Party controls six seats on the Supreme Court, it can simply ask the justices to enforce their preferred federal election laws, and the Court will do so regardless of whether there is any legal support for the GOP’s position.
Ultimately, however, only four justices concluded that the Republican Party gets whatever it wants, regardless of what the law says.
